High Court of Punjab and HaryanaCRM-M/33786/2023allowed

Baldish Kaur v. State Of Punjab

2024-07-23Mr. Justice Kuldeep Tiwari15 pages

(I) CRM-M-33786-2023 Date of Decision : July 23, 2024 BALDISH KAUR -PETITIONER V/S STATE OF PUNJAB -RESPONDENT (II) CRM-M-42636-2023 SONIA -PETITIONER V/S STATE OF PUNJAB -RESPONDENT (III) CRM-M-43448-2023 GURJEET SINGH @ GURJIT SINGH -PETITIONER V/S STATE OF PUNJAB -RESPONDENT (IV) CRM-M-45955-2023 VEENA -PETITIONER V/S STATE OF PUNJAB -RESPONDENT (V) CRM-M-45962-2023 SAHIL BHATTI -PETITIONER V/S STATE OF PUNJAB -RESPONDENT (VI) CRM-M-45206-2023 VINAY SETH @ GOLU -PETITIONER V/S STATE OF PUNJAB -RESPONDENT

(VII) CRM-M-50881-2023 MALKIT SINGH -PETITIONER V/S STATE OF PUNJAB -RESPONDENT

CRM-M-33786-2023).

Mr. Jagjit Singh Lalli, Advocate for the petitioner (in CRM-M-42636-2023).

Mr. J.S. Ghumman, Advocate for the petitioner (in CRM-M-43448-2023).

Mr. G.P.S. Ghuman, Advocate for the petitioner(s) (in CRM-M-45955-2023 and CRM-M-45962-2023).

Mr. Kunwar Rajan, Advocate for the petitioner (in CRM-M-45206-2023).

Mr. Anil Kumar Spehia, Advocate for the petitioner (in CRM-M-50881-2023).

Mr. Pardeep Bajaj, D.A.G., Punjab Mr. S.K. Garg Narwana, Sr. Advocate with Mr. H.S. Saini, Advocate for the complainant.

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#3 5# * GIST OF THE FIR 3.

The genesis of the present FIR is embodied in a complaint made by one Gurpreet Singh son of Manjit Singh (hereinafter referred to as the 'complainant'). Notably, the complainant has now been transposed as an accused by order of the learned trial Court concerned. 4.

Succinctly stated, the allegations levelled in the complaint (supra) are that, the petitioners and their co-accused cheated innocent persons to the tune of crores of rupees, on the pretext of sending them abroad. For ready reference, the relevant extract of the complaint (supra), as reproduced in the present FIR, is extracted hereunder:-

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DETAILS OF INVESTIGATION 5.

Upon notice(s) becoming issued on these petitions, the respondent-State filed separate status reports/replies, detailing therein the incriminatory material(s) collected by the investigating agency against the petitioners, besides detailing therein the role of each petitioner and the manner in which the offence has been committed.

The record available before this Court reveals that, it surfaced during investigation that the complainant used to work as an agent for sending people abroad. One of the petitioners herein, namely, Baldish Kaur along with

# her co-accused Raman, Karan, Gurpreet Singh and Jasvir Singh approached the complainant and allured him that they send people to different countries through shipping company. Upon being convinced, the complainant agreed to send his relatives, friends and clients to abroad through the petitioner(s)/accused and accordingly, he paid total ₹ 1.86 crores to them for this purpose. However, instead of sending complainant's relatives and others to abroad destinations, the accused illegally detained them and threatened them on the strength of weapons to call their respective families, so that their families become assured that their family members have reached their respective abroad destinations and then pay the balance amount. Not only this, to extract the balance money, the accused even sent the photographs of entry/exit stamps and boarding passes to the complainant. Accordingly, believing that his relatives and others have reached their respective abroad destinations, the complainant paid the balance money to the accused. 7.

A thorough investigation was conducted, which resulted in total 13 persons (excluding the complainant) becoming arrayed as accused in the present FIR. Out of these 13 accused, 10 accused have been arrested, whereas, the complainant has secured interim anticipatory bail. 8.

What emanates from the record is that, during investigation, the entire cheated amount of ₹ 2.84 crores, besides the crime proceeds, i.e. 890 grams gold jewellery and 05 cars, have been recovered from the arrested accused. The record further reveals that total 41 persons have collectively been cheated by the accused and the statements of these 41 victims have also been recorded.

After completion of investigation, the Final Report against all the

$ 10 arrested accused was presented in 2023, but, charges are yet to be framed. JOINT SUBMISSIONS OF LEARNED COUNSELS FOR THE PETITIONERS + !# "#

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0 .' '/ ! :,%,%'22'.%' '/ SUBMISSIONS OF THE LEARNED STATE COUNSEL AND LEARNED SENIOR COUNSEL FOR THE COMPLAINANT 11.

Per contra, the learned State counsel, who is assisted by the learned senior counsel for the complainant, has vociferously opposed the grant of regular bail to the petitioners, on the ground that, the petitioners are habitual offenders involved in various FIRs and they are running a huge syndicate in the State of Punjab and other adjoining States. Although the petitioners have duped a large number of people, but, only 41 victims could gather the stregnth to staunchly raise their voice against the fraud committed by them.

12.

The learned senior counsel for the complainant has argued that, in fact, the sphere of crime committed by the petitioners is much larger than reflected during investigation, inasmuch as, money to the tune of ₹ 13-14 crores has actually been cheated by the petitioners, whereas, recovery has only been effected of the amount, as depicted in the present FIR. He has also argued that, in case, the petitioners are enlarged on bail, they would certainly try to affect the pace of trial and to influence the poor victims, who have showed courage to come forward and depose against them. 13.

The learned State counsel has also placed on record the separate custody certificates of the petitioners. For ready reference, the exact period of incarceration suffered by the petitioners, as per their respective custody certificates, is extracted hereinafter:-

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Moreover, on instructions imparted to him by S.I. Deepak Singh, the learned State counsel has verified that charges are yet to be framed. ANALYSIS 15.

Before embarking upon the process of evaluating the arguments addressed by the learned counsels for the parties and penning down any opinion upon the instant petition, it is deemed imperative to capture an overview of some significant legal propositions. 16.

"Bail is the Rule and Jail is an Exception". This basic principle of criminal jurisprudence was laid down by the Hon'ble Supreme Court, way back in 1978, in its landmark judgment titled "State of Rajasthan V. Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1) 535. This principle finds its roots in one of the most distinguished fundamental rights, as enshrined in Article 21 of the Constitution of India. Though the underlying objective behind detention of a person is to ensure easy availability of an accused for trial, without any inconvenience, however, in case the presence of an accused can be secured otherwise, then detention is not compulsory. 17.

The right to a speedy trial is one of the rights of a detained person. However, while deciding application for regular bail, the Courts shall also take into consideration the fundamental precept of criminal

jurisprudence, which is "the presumption of innocence", besides the gravity of offence(s) involved.

18.

In "Gurbaksh Singh Sibbia v. State of Punjab", (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out by the Hon'ble Supreme Court with great felicity as follows:- "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v.

King Emperor, AIR 1924 Calcutta 476 (479, 480) that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v.

Emperor, AIR 1931 Allahabad 504 (SB) it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson, AIR 1931 Allahabad 356 at p.

358 it was said that it was very unwise to make an attempt to lay down any particular rules which bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered.

particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

XX XX XX

29. In Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 it was observed by Goswami, J., who spoke for the Court, that "there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail".

30. In American Jurisprudence (2d, Vol. 8, page 806, para 39) it is stated :

"Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end."

It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail." 19.

Also, in "Gudikanti Narasimhulu and others Versus Public Prosecutor, High Court of Andhra Pradesh", 1978 AIR (Supreme Court) 429, the Hon'ble Supreme Court, speaking through Krishna Iyer, J., has enunciated the principles of bail thus :

"9. Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the member of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

10. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to he goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests of justice - to the individual involved and society affected.

11. We must weight the contrary factors to answer the test the reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare of present his case than one remanded in custody. And if public justice is to be promoted. mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable

incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

12. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our Constitution.

13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court's verdit once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so - of innocence has been recorded by one court.

It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique.

stampede the court into a complacent refusal." 20.

This Court has heard the rival submissions made by the learned counsels for the parties and perused the record. Be that as it may, this Court is of the view that the present petition deserves to be allowed for the following reasons:- (i) undisputedly, the petitioners have suffered incarceration of approx. 01 year and 04 months; (ii) there is no likelihood of the trial concluding anytime soon, inasmuch as, charges are yet to be framed in the present case and the learned trial Court concerned has clubbed the proceedings of the present FIR with FIR No.03 (supra); (iii) prosecution has cited 61 witnesses in the present FIR and 35 witnesses in FIR No.03 (supra); (iv) the exact cheated amount, as per the present FIR, has already been recovered; (v) the alleged crime proceeds, i.e. 890 grams gold jewellery and 05 cars have also been recovered. For all these reasons, this Court believes that subjecting the petitioners to prolonged incarceration would serve no fruitful purpose.

21.

Insofar as grant of regular bail to petitioners' co-accused Somnath @ Somraj is concerned, this Court is not examining as to whether the petitioners are on parity with him or not, inasmuch as, the allegations in the present FIR are that all the accused have collectively, in furtherance of their conspiracy, duped many victims.

22.

Therefore, without commenting upon the merits and circumstances of the present case, the present petitions are allowed, however, subject to the conditions enumerated hereinafter. (i) The petitioners shall forthwith, in case they possess, deposit their respective passports with the learned trial Court concerned;

(ii) The petitioners shall not cause any impediment or adopt any dilatory tactics, vis-a-vis, absenting themselves one by one from the trial proceedings, thereby causing delay in conclusion of the trial;

(iii) The petitioners shall not, except for strong and compelling reasons, absent themselves from the trial proceedings. In case they do so, the learned trial Court concerned shall pass appropriate orders warranted under law against them. Moreover, thereafter the issue of grant of bail to the petitioners would be considered only after examination of all the prosecution witnesses;

(iv) In the event of the petitioners making any attempt to influence or threat any of the victims/witnesses cited by the prosecution, the same shall be construed to be violation of the terms and conditions of bail and then the respondent-State would be at liberty to institute an appropriate motion, thus seeking cancellation of bail granted to the petitioners. 23.

The petitioners are ordered to be released on bail on furnishing of bail bond and surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial Court/Duty Magistrate.

24.

However, anything observed here-in-above shall have no effect on the merits of the case and is meant for deciding the present petitions only. 25.

# (KULDEEP TIWARI) July 23, 2024 JUDGE devinder Whether speaking/reasoned :

Yes/No Whether Reportable :

Yes/No